Tag: Mark Fierro

From Open Murder To Gross Misdemeanor

-By Mark Fierro

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In the pantheon of courthouse stories that will live on forever, there is a new entry: the case of the “Smoke Shop Shooter,” 24-year-old Raad Sunna, who was originally charged with open murder before he ultimately pleaded down to a gross misdemeanor in return for no time served. No trial. No felony record. No time. Zero. Nada.

One reason the case will live long beyond a mortal expiration date is the reaction of Dominic Gentile, the lead defense attorney in the case. Gentile has said that upon reflection, he is disappointed in the outcome.

“I know there are a lot of people applauding the result here, but I’m not one of them,” Gentile said. “It is a criminal defense lawyer’s horror to represent a person who is truly, factually innocent of what he is charged with, because it brings far more pressure. This was a classic example of how frustrating our criminal justice system is, because it is geared toward the negotiated settlement, the disposition, of cases.”

“Here you have a situation where a person should not have to carry on his record that he has been charged with a crime, and certainly should not have to carry that he has been convicted of a crime, because he did nothing illegal. He did nothing wrong. So, when you have somebody like that you are representing, it keeps you up at night — if you’re conscientious.”

Initially, Gentile’s contention of Sunna’s innocence seems to fly in the face of the fact pattern. The deceased person was 13 years old, unarmed, and had been shot in the side once and in the back six times.

The shooting generated sensational headlines from the evening of the incident. It began as a robbery attempt at a smoke shop in a southwest Las Vegas Valley strip mall, with three teenagers putting on layer upon layer of clothing to make themselves appear larger and more menacing. They donned shemagh-style masks, which many people associate with tactical military forces or terrorism.

All of the perpetrators’ preparation for the robbery was caught on surveillance video from a camera at a nearby store.

They burst in the door and rushed toward Sunna, the lone clerk in the family-owned smoke shop at the time. Video from the shop shows two of the attackers leaping behind the store’s counters and Sunna responding by drawing his pistol. Seconds later, one of the masked robbers, Fabriccio Patti, would be dead on the floor.

Thanks in part to the surveillance video footage, Gentile liked his position from the moment he took the case. “When I first saw the video, I never believed the police or the district attorney would file any charges,” Gentile said. “Raad’s background was pristine. I don’t think I could possibly create a fictional client who had more to offer to society than this kid. He was just the poster boy for good behavior.”

Sunna is literally an altar boy. When he sat down with police to answer their questions on the night of the shooting, he asked that his priest accompany him. That priest, Father John Nicholas, would have been a stellar witness had the state decided to proceed to trial. Even though he had an altar boy client with a background that would be any defense attorney’s dream, Gentile was not fully confident in his chances until he saw the results of a pair of focus groups he ordered. (Full disclosure: Fierro Communications, Inc., provided support for Gentile’s firm in preparation for the case, particularly in the area of conducting and analyzing focus groups and mock juries. As a direct result of their work on this case Fierro Communications and Gentile have partnered to launch a business based on focus groups.)

“You always have to stress test your own beliefs and your own point of view and your own evaluation of the evidence against what others may think of it,” Gentile said. “Lawyers are often far removed from the mindset of those who have nothing to do with the law. Sometimes their judgment is too constricted by the rules of law. I know what the jury instructions are, I know what the elements are of murder and all the other included offenses of murder. I know where the burden of proof rests on self-defense. I saw it as self-defense. But there were a couple of powerful factors that were not necessarily working in Raad’s favor. One was the person he shot was 13 years of age. Of course, Raad could not have known that. But at the end of the day you do not know how much sympathy the jury will have for the parents of a dead 13-year-old. Another factor was the dead man was not armed. Again, there was no way for Raad to know that, particularly with the way he ran at him. It turns out one of his cronies was armed with a butterfly knife that could cut your throat in no time. But the dead man was not armed.

“When those factors are in the mix, you have to worry about it. How is that going to impact emotionally the members of the jury? Regardless of what anyone says, the jury decides the case viscerally and then thinks of a rationale. That’s the nature of a group decision-making process. And that’s absolutely what juries do. Any trial lawyer or judge will tell you that.”

In studying the mock juries that made up the focus groups, Gentile’s resolve was strengthened when he observed that both groups independently decided that Sunna should be acquitted. “Both focus groups started out exactly the way I was afraid of,” Gentile said. “They started out by looking at a 13-year-old, unarmed, and looking for a reason to convict Raad Sunna. As they worked through it and started putting themselves in the place of Raad, the focus groups, without knowing what the other one was doing, both unanimously came to the conclusion that it was self-defense. The irony was the paths each one took to that conclusion were different from the other. When you see them reaching the same result from two different paths, it puts steel in your spine.”

On Feb. 1, 2018, a year and two months after the shooting, Sunna was sentenced to probation and community service after pleading guilty to a gross misdemeanor. He originally faced a charge of open murder that carried the possibility of a life sentence without parole.
The outcome followed tense negotiations between Gentile’s firm and the district attorney’s office that lasted until the final possible moments. The focus group research bolstered Gentile’s confidence during the negotiations.

“I strongly believe in focus groups. I’ve been doing them since the early ’80s,” Gentile said. “Focus groups don’t have to cost a lot of money. You can do a focus group without a lot of bells and whistles and benefit from it. What I really want to do is take the experience I’ve had with focus groups as well as juries, and we want to make it affordably available to more lawyers who handle jury-eligible litigation. I stopped counting, but I definitely have had more than 150 jury trials, every one of them as a private practice effort.

“I want to take that experience and share it with other lawyers. In the plaintiff personal injury arena, I think that cases are settled for too little because lawyers don’t want to spend the money for a focus group.

“And I’m absolutely certain that more cases should go to trial in the criminal arena. Too many cases are settled for way too great a penalty. This case proves that. It wasn’t finalized until the last minute. The next work day, we were supposed to start picking a jury at 9 a.m. And it was 4:59 p.m. the day before that the case was negotiated for what we had demanded. The district attorney’s office didn’t give in for less than a felony until that moment.”

Even though Sunna and his family were satisfied with the decision, Gentile still does not consider it a just result.

“A just result would have been the district attorney dismissing the charges outright,” Gentile said. “What the district attorney did was play the game to the hilt by giving us the Hobson’s choice of running the risk of a renegade jury, who would not see it as the focus groups did, as opposed to something that was not a felony and would most likely not result in him being incarcerated.

“What was I going to tell the client and his family, ‘Trust me, we can win this case?’ I told them what I would tell my own son: You can’t always get what you want, but you can get what you need. What Raad needed, more than anything else, was not to run the risk of life in prison.

“It was three masked robbers running through the front door of a store, totally surprising him. Anybody with a gun would have done what Raad did. Anyone who would dispute that, I would tell them to go click on the video and watch it. And watch the video from the vestibule next door where they were preparing for the robbery.” Gentile ranks the case among the most memorable in his long and illustrious career. “It is absolutely, without a doubt, in my top five cases,” Gentile said. “Although I don’t feel happy about the result, in some respects it may be the best work I’ve ever done.”


Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.

Preparing For Trial With A Mock Trial

Trial

One of the most difficult aspects of trying a major case whether it’s civil or criminal is simply not knowing how a jury will interpret the major aspects of your case. More problematic, the closer an advocate is drawn into building their case the more likely they are to be blinded by their depth of understanding their own arguments. A sort of target fixation occurs.

The use of focus groups can help you understand the jury’s attitudes and prejudices long before you walk up the courthouse steps. We recently worked closely in presenting a mock trial before a focus group on a civil case with Las Vegas attorney Dan Carvalho. The case resulted in a settlement of tens of millions of dollars. In this segment of The Court Of Public Opinion, we interview Mr. Carvalho on the topic of mock trials and focus groups.

Q: After going through the mock trial and focus group, what is the critical advantage you’ve seen?

Dan Carvalho: There is no form of trial preparation, in my opinion, that gets you ready to put on your case better than to actually go through a mock exercise of it.

In other words, your evidence that you think is going to work well, or not work well, it’s just what you think. But once you’ve exercised it — in this recent case we worked on we had 30 human beings and we got to hear what they all had to say about it — when you start to see the trends of 29 of 30 not willing to go above 20 percent comparative negligence, you start to realize that these arguments work on something that’s critically important to them. They get it.

It may look like a large expense initially, but it almost always pays for itself, doesn’t it?

From the plaintiff’s perspective, when you only get paid as an attorney if you recover, what always motivates me is the fear of not recovering.

If you’re really doing a good job for your client, you have to treat it like you can’t lose. What do you have to do to prepare yourself to not lose? You out-prepare, outwork your opponent. Doing what we did is part of just that.

If the stakes are high enough, I think you have to do focus and mock trial research in your case. Not doing so means not doing as good a job as you can do. 

If mock jurors overwhelmingly back you in mock, can confidently make a much stronger demand?

That’s another great thing about it. At first in this case, less money was offered. If that mock research turned out differently, I probably would have taken the lesser amount.
When the stakes are as high as they were, I think you have to get that mock research done, so you can help your client make a good decision, because ultimately the client is the one who decides whether or not to accept an offer. I can recommend for or against, but they ultimately have to do it.

When you have a piece of land, you get an appraisal. Well, we are the appraisers of these cases. And if you want to be able to do a good job for your client, and tell them what it’s “worth,” you have to do the research.

In this case in particular and other cases in general, what are you looking for in mock trials and focus groups?

You always go in, in the back of your mind, hoping to get a great result.

The reality is that we do not want to put on a case that is most favorable to us in a mock, meaning, for example, most of the time, at the time you do the mock, most of the evidentiary issues are not resolved. You hope to get some evidence in, or keep out evidence that’s harmful.

When we did mock in this case, the stuff we wanted left out, we let it in. We wanted to see how a jury was affected by this stuff.

For instance, when I saw that jurors in this case weren’t particularly interested in taking comparative negligence on, it took a lot of concern out of the situation. That helps you focus on how you’re going to prepare for trial.

For somebody who has never done a focus group, it seems like a big task. In reality, how much additional work is it?

It is certainly much less work than preparing for and conducting a significant jury trial, for a multitude of reasons.

We did what we refer to as “clopening,” which is half opening statement, half closing argument. You’re essentially doing a little bit of both all at once.

On a scale of 1 to 10, where 10 is most strongly agree, rate the statement, “Focus and mock trial is critically important to a major case.”

10. You cannot afford not to prepare. I’ve done them and learned that the offer is probably more than I’m likely to get at trial. I’ve spent the money and I’m glad I learned that. Or you could have the inverse occur and realize you should not take less than everything that is available.

When the stakes are that high, you have to do everything you can in order to find that out. 

This is really a road map to success, isn’t it?

Without question, focus research helps you conduct the actual trial at a level that is much higher than you ever could have done just walking into the courtroom for the first time and giving your opening and examining witnesses just based upon what you think is going to be most effective.

When you have the opportunity to conduct that exercise, and learn from a sufficient number of people what moved the needle for them, it allows you to tighten up everything you do from jury selection to closing arguments. It allows you to focus on what is important and what is not, whether it is something that may be helpful or harmful to your case.


Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.

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